Private: Guest Blogger: The Pitfalls of Textualism

by Michael CoblenzMichael Coblenz is an attorney in Lexington, KY. He has a MA in American History and an LLM in Intellectual Property law.
This is the second in a series of three blog posts on Judge Alito and strict construction.
Textualists say that it is the role of judges to adhere to the text of the Constitution. Justice Antonin Scalia is perhaps the most prominent textualist, and his book, "A Matter of Interpretation," sets out his theory of constitutional interpretation. "The text is the law, and it is the text that must be observed." The actual words of the Constitution should be the starting point for any analysis of a law. This, in and of itself, is not a radical idea. Even the most liberal justices recognize that they are bound by the text of the Constitution.
Textualists recognize that the words used in the Constitution are occasionally unclear, and in those situations, they attempt to look at the original meaning of the words or phrases, and not, as Scalia has said "not what the original draftsmen intended." It seems simple enough, but problems are obvious on closer scrutiny.
First, saying that justices should be bound by the terms of the text of the Constitution seems to imply that the text covers most of the problems that come before the court. But the Constitution is a rather skimpy document that primarily sets out the broad framework of the national government. It establishes the three branches of the Government (Legislative, Executive, and Judicial) and sets out their basic duties and powers, and then provides some information about the relationship between the states and the federal government. The original document didn't even include individual rights: those were only added two years later with the first ten amendments to the constitution.
The text of the Constitution also has varying levels of clarity and ambiguity. Most of it is pretty straight-forward and not subject to dispute. For example, members of the House of Representatives shall be "chosen every second year," and must be "twenty five Years" old to serve. Not much to disagree over in that.

There are obviously other provisions of the Constitution that are unclear. Some are broadly ambiguous, and some are unclear to modern ears. An example of the latter is the provision that says that the President "shall not receive ... any other Emolument from the United States, or any of them." From the context of the section it appears that Emolument must mean some form of compensation, but that section also used the term 'compensation,' so perhaps 'Emolument' has some other meaning. The textualist approach of finding that meaning based on the use of words in the era that the Constitution was drafted makes a great deal of sense in this situation.
Another commonly cited example of appropriate use of Textualism involves the due process clause of the Fifth Amendment. Due Process is a relatively open ended concept, and needs some explanation. Certainly the Sixth, Seventh, and Eighth Amendments provide some additional detail about acceptable judicial processes, but it makes sense to look at the types of judicial proceedings in practice at the end of the 18th Century to give the phrase full meaning.
The real difficulty occurs, however, with words and phrases that are broadly ambiguous. What is "necessary and proper" (Art. I, Sect. 8, Cl. 18)? What is "Full Faith and Credit" (Art. IV, Sect. 1, Cl. 1)? What are the "Privileges and Immunities" of citizens (Art. IV, Sect 2, Cl. 1)? These phrases confuse us today, but an honest reading of history shows that the founders and earliest generation of Courts and Congress didn't have a clear understanding either.
Textualists, like Scalia, say that in these cases we should look to the original meaning of the words, but this involves an historical analysis that is often difficult and contradictory, as will be discussed in greater detail in the next post.
Another problem with Textualism is that its adherents apply it in a selective and inconsistent manner. The best example comes from the case that started the discussion of original intent: Roe v. Wade. Conservatives claim that the ruling is illegitimate because there is clearly no right to abortion in the Constitution. But the Supreme Court in Roe v. Wade based its holding on the right to privacy set out in Griswold v. Connecticut, 381 U.S. 479 (1965). Many conservatives argue, again correctly, that there is no right to privacy in the Constitution, but the Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Some conservatives simply ignore this Amendment, and adherents to original intent say that the framers meant something else, but a textualist is stuck. The plain meaning of those words is that there are rights that can exist that are not explicitly set out in the text of the Constitution. For a textualist to suggest otherwise is inconsistent with the definition of Textualism. Yet many textualists, including Justice Scalia, ignore the reasonable meaning of the words of the Ninth Amendment.
This points to yet another problem with Textualism: it is often a form of linguistic gamesmanship. While the Constitution clearly does not contain the words "right to privacy" is does contain a number of specifically enumerated rights that require that the government leave people alone. The First Amendment says that citizens have the right to think and say what they want, assemble and associate with whom they want, and practice the religion they chose. The Fourth Amendment says that citizens have the right to a certain degree of personal security in their "persons, houses, papers and effects." The Self Incrimination Clause of the Fifth Amendment prevents a person from being compelled to speak against his or her will and to his or her detriment. These provisions read like the Bill of Rights is saying that in many situations people have a right to be left alone. Whether the right to be left alone is the same thing as a right to privacy is an odd definitional inquiry that turns judges into linguistic anthropologists attempting to dig up and decipher two hundred year old word meaning. Ultimately Textualism creates the appearance but not the reality of rhetorical stability. It simply shifts the argument from a discussion of public policy to an argument about the meaning of words.
One way to expose some of the logical errors of textualism is through a series of questions presented to Judge Alito (or any future conservative judicial appointee). Following are a series of questions on textualism:
1. Do you consider yourself a textualist?
2. Provide some examples of provisions of the Constitution that you believe to be particularly clear and unambiguous, and therefore good candidates for the application of Textualism.
3. Do you believe that there are provisions of the Constitution that are unclear or ambiguous, and therefore possibly not good candidates for Textualism?
4. In those cases where the Constitution is unclear or ambiguous, how do you think that those ambiguities should be resolved?
5. Justice Scalia says that the words of the Constitution should be interpreted based on a reasonable meaning given those words at the time that the words were written. Do you agree?
6. Do you believe that the Constitution provides a right to privacy?
7. Do you believe that a right has to be set out explicitly in the Constitution for it to exist?
8. The Ninth Amendment to the Constitution says that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." What do you think that this means?
9. If, as Justice Scalia says, the text is the law, and texts should be read to give the words a reasonable meaning, shouldn't the Ninth Amendment be read to mean that rights to not have to be specifically set out in the Constitution for them to exist?
10. Can you suggest some of the rights that James Madison might have had in mind when he drafted the Ninth Amendment?
The First Amendment says that citizens have the right to think and say what they want, assemble and associate with whom they want, and practice the religion that they chose. The Fourth Amendment says that citizens have the right to a certain degree of personal security in their "persons, houses, papers and effects." The Self Incrimination Clause of the Fifth Amendment prevents a person from being compelled to speak against his or her will and to his or her detriment. This sounds like the Bill of Rights is providing the right to be left alone. [This is essentially the Supreme Court's reasoning in the case of Griswold v. Connecticut, 381 U.S. 479 (1965) where the Court for the first time said there was a "right to privacy."]
11. Would you describe these provisions of the Bill of Rights as the 'right to be left alone'?
12. The political philosopher Isaiah Berlin in his essay "Two Concepts of Liberty" suggests that 'positive' liberty is the liberty to do what one wants, and 'negative' liberty as the liberty to be left alone. Berlin calls the right to be left alone, 'privacy.' Does it seem reasonable to define the right to be left alone as a right to privacy?